Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Knott County Judge/Executive violated the Open Records Act in the disposition of Mikel F. Fitch's August 14, 2009, request for "a copy of the slope protection project plan for the construction of the grouted rip/rap structure on Chaffins Branch . . . [including] the results of any tests or other measures which were used to evaluate or determine the adequacy of said slope protection project [such as] velocity tests, erosion testing, design testing, etc." Having received no response to his request, Mr. Fitch initiated this appeal on August 24, 2009, explaining that the slope protection plan "was prepared for Knott County by the Department of Agriculture Natural Resources Conservation Services . . . ." For the reasons that follow, we find that although Knott County failed to respond in a timely fashion and mischaracterized Mr. Fitch's request as improper, insofar as he sought access to records by receipt of copies through the mail, the County discharged its duties under the Act by releasing all existing responsive records to Mr. Fitch and advising him that it maintained no other responsive records.
In a letter dated August 26, 2009, and directed to this office, Knott County Attorney Timothy C. Bates explained that following the August 14 receipt of Mikel Fitch's faxed open records request, Judge Randy Thompson "forwarded via U.S. Mail a complete copy of everything in the County's file regarding the project in question to Mr. Fitch . . . on or around August 21, 2009." 1 In response to Mr. Fitch's August 24 telephoned requests for a copy of the slope protection plan, Mr. Bates continued, "county officials made clear that the County had sent him a copy of their entire file regarding the Chaffins Branch project, and if a slope protection plan existed it was not in the County's file . . . ." On behalf of the County Judge, Mr. Bates asserted that Mr. Fitch's appeal was meritless because "he made a request for copies of records as opposed to making a request to inspect said records," and because "the slope protection plan was not a record which the County maintained in their file."
Both Mr. Bates and Judge Thompson reaffirmed these statements in responses to our KRS 61.880(2)(c) inquiry concerning the County's possession of the plans and specifications for the referenced project, supporting documents, and test results, asserting that if the County "were indeed provided with the documents, we cannot locate them," and that it was unlikely that the County ever received them. Having already mailed him the complete file, the County again extended an invitation to him to "come inspect the files for himself."
We find that the Knott County Judge/Executive violated KRS 61.880(1) in failing to issue a timely written response to Mr. Fitch's request. The County acknowledged receipt of Mr. Fitch's faxed request on August 14, 2009, but indicated that a response, consisting of the complete project file, was not mailed to Mr. Fitch until August 21, 2009. The County offered no explanation for this delay which, although brief, nevertheless exceeded the three day statutory deadline. We urge the County to review its open records policies to insure that future responses are issued in a timely fashion. See 09-ORD-139, attached.
Further, we find that the County improperly characterized Mr. Fitch's request as improper because it was framed as a request for copies rather than a request to inspect. Since it was amended in 1992, the Kentucky Open Records Act has provided:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
KRS 61.872(3)(a) and (b) (emphasis added). As this office recently observed, "the receipt of copies is no longer conditioned on onsite inspection of those records, that requirement having been abandoned in 1992." 09-ORD-139, p. 7. Because Mr. Fitch resides outside the County in which the public records are located, his request for copies was entirely proper. Given the fact that the County located and mailed all responsive records in its custody, we must assume that the request contained a precise description and that the records were readily available within the agency.
Having so concluded, we nevertheless find that Knott County discharged its statutory duty by providing Mr. Fitch with copies of its entire file on the Chaffins Branch project and thereafter notifying him that no additional responsive records exist. See, 06-ORD-238 (attached). Given the factual dispute relating to the transmission of a copy of the project plan to the County by the NRCS, the undersigned assistant attorney general contacted the NRCS employees with the greatest knowledge of the dispute. FOIA Officer Billye M. Haslett stated that there was, indeed, some confusion as to whether Knott County received a copy of the project plan, acknowledging that it apparently had not, but indicated that NRCS had nevertheless provided Mr. Fitch with a copy of the plan. The latter statement was confirmed in a copy of the August 25 letter she sent to Mr. Fitch in which Ms. Haslett advised him that NRCS's "files indicate[] there were no reports or tests related to this Project Agreement, therefore no documents are available . . . ." This statement conclusively establishes that Mr. Fitch has received all records responsive to his request, and that both the county and federal agencies have expressly denied the existence of any additional records. Knott County cannot produce nonexistent records, and its inability to do so does not constitute a violation of the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Mr. Fitch acknowledged receipt of Judge Thompson's August 24 response, and "partial fulfillment of [his] open records request" in a letter to this office dated August 25, indicating that the Natural Resource Conservation Service had advised him that Knott County received copies of "the plans and specifications, design supporting documents, results of tests performed, etc." and demanded that, if the records did "not exist[,] the Knott County Judge Executive and Knott County Attorney so state in a letter to [him]."